THE POISONED CHALICE: Why the Government Must Withdraw Bill No. 7 of 2025
By Mehluli Malisa Batakathi
Introduction:
This commentary analyses the Constitutional Court’s majority decision in Munir Zulu and Celestine Mukandila v. Attorney General 2025/CCZ/009, which declared the procedure leading up to the drafting and gazetting of the Constitution of Zambia (Amendment) Bill No. 7 of 2025 unconstitutional. The article evaluates the legal and normative implications of the judgment, critiques the dissenting judgment for its reliance on narrow textualism, and argues that the Bill undermines participatory constitutionalism and the philosophical foundations of constituent power. It concludes with a strong recommendation that the government withdraw the Bill instead of deferring it, in order to return to constitutional legitimacy and democratic accountability.
1. Background: A Constitution Betrayed
The Constitution is not merely a legal instrument, it is a political covenant between the governed and their governors. As such, it demands more than technical compliance; it requires fidelity to the democratic values that sustain constitutionalism. The Constitution of Zambia (Amendment) Bill No. 7 of 2025 lamentably fails this test.
The Constitutional Court’s majority judgment in Munir Zulu and Celestine Mukandila v. Attorney General rightly found that the Bill’s formulation violated the principles of popular sovereignty, participatory democracy, and the dictates of constituent power in a constitutional republic.
This commentary defends that conclusion and contends that the government has no legal or moral basis to pursue the Bill’s resurrection at a future date. To do so would be to endorse a dangerous precedent that could fracture the foundations of constitutional government in Zambia.
2. Constitutionalism, Constituent Power, and the Role of the People
2.1 The Normative Foundation of Constitutionalism
Constitutionalism embodies a commitment to limited government, the rule of law, accountability, and popular participation. It distinguishes between legal authority and legitimate power, recognizing that a process may be procedurally valid yet constitutionally illegitimate if it contravenes these foundational values.
As Karl Klare’s theory of transformative constitutionalism posits, the Constitution must be interpreted not only as a legal text but as a living instrument aimed at societal renewal, equality, and democratic participation. This requires courts to go beyond proceduralism and embrace substantive constitutionalism, which protects the spirit of the Constitution against executive and legislative overreach.
2.2 Constituent vs. Constituted Power
Central to the judgment in the Munir Zulu case, is the reaffirmation of the distinction between constituent power, which is the original, sovereign power of the people to make or remake a constitutional order, and constituted power, which is exercised by state organs under the authority of an existing Constitution.
Constituent power is inalienable and indivisible. It cannot be exercised by proxy. It is the author’s view that the Bill’s attempt to overhaul the constitutional framework without broad-based national consultation or public involvement represents an unlawful attempt by Parliament, a constituted authority, to usurp a function reserved exclusively to the people.
2.3 The Case Against Bill No. 7 of 2025
a. Absence of Meaningful Public Participation
The Constitutional Court majority underscored this fundamental flaw in the Bill’s formulation, the lack of meaningful public participation. The Court held:
“In our considered view, the formalised wide consultations that normally take place before a Constitution amendment process in this country acknowledge the inherent nature of the people’s constituent power. The power as actualised in the provisions we have identified is not legislated by Parliament because it is an inherent power. Thus, wide public consultations are the norm, routinely facilitated by the Executive as part of a true national custom. The public expect nothing less, and departure therefrom would create uncertainty and confusion as well as weaken the constitutional mechanisms designed to protect the Constitution.”
This position reflects a broader consensus in comparative constitutional jurisprudence. In the case of Doctors for Life International v. Speaker of the National Assembly (CCT 12/05), the South African Constitutional Court emphasized that public participation in the legislative process is not discretionary, but constitutionally mandated.
Similarly, in David Ndii & Others v. Attorney General [2021] eKLR, the Kenyan High Court held:
“The power to amend the Constitution fundamentally resides in the people, and not in the institutions created by it. Where the amendment touches on the basic structure, constituent power must be exercised.”
The majority in Munir Zulu embraced this reasoning by recognizing that Article 79 of the Zambian Constitution, while outlining procedural requirements, does not and cannot displace the foundational role of the people in reshaping the constitutional order.
b. Procedural Compliance vs. Substantive Legitimacy
While the government and the dissenting justices relied on the formal observance of Article 79, particularly gazzetting and parliamentary debate, the majority made it clear that procedural compliance does not cure substantive illegitimacy.
The dissenting judgment, rooted in strict textualism, ignored the spirit and architecture of the Constitution, which centers the people as the sovereign authority.
Conversely, the majority decision ring fenced the long held principle that constitutionalism is a broader concept than constitutional legality. A Constitution can be amended legally but still unconstitutionally if it violates foundational principles such as popular sovereignty and participatory democracy.
This formulation is not merely judicial rhetoric, it is an articulation of the living nature of constitutional law, and its imperative to constrain power even when exercised within formal bounds.
3. Critique of the Dissenting Judgment
In the author’s view, the dissenting judgment in Munir Zulu suffers from a formalist and literalist interpretive approach that strips the Constitution of its normative core. By focusing narrowly on Article 79, the dissenting judgement reduced the Constitution to a procedural manual, devoid of values or purpose.
Such an approach risks endorsing elite constitutionalism, wherein the political class amends the Constitution for partisan or expedient purposes, while the citizenry watches from the sidelines. This vision is antithetical to Zambia’s post colonial constitutional evolution, which has sought to reposition the people as the primary authors of their governance architecture.
4. The Way Forward: Withdrawal as a Constitutional Necessity
In light of the Court’s Judgment, deferring the Bill is clearly not enough. The continued pursuit of Bill No. 7, even at a future date would be an affront to constitutional governance. Withdrawal is not merely a political choice; it is a constitutional imperative. To persist would:
• Undermine judicial authority;
• Weaken public confidence in democratic institutions;
• And risk precipitating a constitutional crisis.
A re-engagement with the people, through deliberate civic education, public consultation, and transparent dialogue, must precede any legitimate attempt to amend the Constitution.
5. Conclusion
The judgment in Munir Zulu and Celestine Mukandila v. Attorney General is a seminal reaffirmation of the people’s primacy in constitutional governance. It cautions against stealth amendments and elite driven reform, reminding all arms of government that the legitimacy of constitutional change flows not from Parliament, but from the people themselves.
Bill No. 7 of 2025 is no longer a constitutional proposal; it is a poisoned chalice. Its withdrawal is not a concession, it is a corrective act of democratic responsibility.
In constitutional democracy, the ultimate authority does not lie in the halls of Parliament but in the hearts of the people. And when those people are excluded, the Constitution becomes not a covenant, but a command, legal, perhaps, but never legitimate.